M/s. Babubhai Cloth Stores, Nashik V. Additional Commissioner of Income-tax,

MA 23/PUN/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5148 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 02-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Keywords: Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . /MA NO. 23 /PN/ 20 1 6 ARISING OUT OF ITA NO. 48 /PN/20 1 2 ASSESSMENT YEAR : 200 7 - 0 8 M/S. BABUBHAI CLOTH STORES, BABUBHAI VILLA, KULKARNI COLONY, SHARANPUR ROAD, NASHIK 422002 ... APPLICANT PAN: AADFB4642E VS. THE ADDL. COMMISSIONER OF IN COME TAX, RANGE 1, NASHIK ... RESPONDENT APPLICANT BY : SHRI HARI KRISHNA RESPONDENT BY : SHRI ANIL CHAWARE / DATE OF HEARING : 21 . 1 0 .201 6 / DATE OF PRONOUNCEMENT: 21 . 12 .201 6 / ORDER PER SU SHMA CHOWLA , JM : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE APPLICANT AGAINST THE ORDER OF TRIBUNAL IN ITA NO. 48 /PN/20 1 2 RELATING TO ASSESSMENT YEAR 200 7 - 0 8 , ORDER DATED 24 . 0 2 .201 6 . 2 M A NO. 23 /PN/20 1 6 ARISING O UT OF ITA NO. 48 /PN/ 20 1 2 2. THE ASSESSEE APPLICANT IS AGGRIEVED BY TH E EX PARTE ORDER PASSED AGAINST IT AND HAS PLEADED THAT IT HAD NOT RECEIVED ANY COMMUNICATION ABOUT THE HEARING FIXED ON 28.01.2016 AND 02.02.2016 AND HENCE THE DEFAULT IN APPEARANCE BEFORE THE TRIBUNAL. 3. THE PERUSAL OF THE ORDER PASSED BY THE TRIBUNAL REFLECTS THAT THE REFERENCE IS MADE TO VARIOUS DATES OF HEARING, UNDER WHICH THE APPEAL W AS ADJOURNED FROM TIME TO TIME. THE PERUSAL OF THE ORDER SHEET ENTRIES REFLECTS THAT THE APPEAL WAS FIXED ON 19.03.2015, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE A ND NOTICE WAS ISSUED TO THE PARTIES THROUGH RPAD . O N 06.07.2015 , T HE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS ASKE D TO PRODUCE ASSESSMENT RECORDS, HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE AND ANOTHER NOTICE WAS SENT TO THE PARTIES . O N 29.09.2015 , A N ADJOURNMENT APPLICATION WAS MOVED ON THAT DATE, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE IN THE COURT. THEN, ON THE DATE, BUT NONE APPEARED ON BEHALF OF THE ASSESSEE IN THE COURT. THEN, ON THE NEXT DATE OF HEARING I.E. 29.12.2015, THE MATTER WAS AGAIN ADJOURNED AT THE REQUEST OF ASSESSEE VIDE LETTER DATED 22. 12.2015. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE AND NEXT DATE OF HEARING WAS PRONOUNCED IN OPEN COURT . IT WAS ALSO MENTIONED THAT IT WAS LAST OPPORTUNITY FOR THE ASSESSEE TO SEEK ADJOURNMENT. ON THE NEXT DATES OF HEARING I.E. ON 28.01.2016 AND 02.02.2016, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE TRI BUNAL PROCEEDED TO DECIDE THE APPEAL EX PARTE ON 02.02.2016 . 4. THE APPLICANT IS AGGRIEVED WITH THE ORDER OF TRIBUNAL AND HAS PLEADED THAT IT HAD NOT RECEIVED ANY COMMUNICATION ABOUT THE HEAR ING FIXED IN THE CASE. THERE IS NO MERIT IN THE SAID PLEA OF ASSESSEE, WHERE THE MATTER WAS ADJOURNED AT THE REQUEST OF ASSESSEE AND IT WAS INCUMBENT UPON THE ASSESSEE TO FIND THE NEXT DATE 3 M A NO. 23 /PN/20 1 6 ARISING O UT OF ITA NO. 48 /PN/ 20 1 2 OF HEARING. IT IS NOT THE CASE THAT THE MATTER WAS DECIDED EX PA RTE ON IMMEDIATELY NEXT DATE OF HEARING BUT ANOTHER OPPORTUNITY WAS ALSO GIVEN IN THE CASE. HOWEVER, THE APPLICANT FAILED TO COMPLY WITH THE DIRECTIONS OF THE TRIBUNAL AND DESPITE LAST OPPORTUNITY BEING GIVEN, THERE WAS NO COMPLIANCE ON THE PART OF APPLIC ANT. HENCE, THERE IS NO MERIT IN MISCELLANEOUS APPLICATION MOVED BY THE APPLICANT. 5. UNDER THE PROVISIONS OF RULE 25 OF INCOME TAX APPEAL RULES, WHERE AN EX PARTE ORDER HAS BEEN PASSED FOR DEFAULT OF ASSESSEE, THEN IT IS PROVIDED THAT IF THE RESPONDEN T APPEARS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON - APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING, THEN THE TRIBUNAL SHALL RECALL THE ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL. IN VIEW THEREOF, THE ONUS IS UPON THE RESPONDENT TO SATISFY THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON - APPEARANCE ON THE APPOINTED DATE OF HEARING. IN CASES, WHERE A NOTICE OF HEARING HAS BEEN ISSUED TO THE ASSESSEE WHICH HAS BEEN COMPLIED WITH NOTICE OF HEARING HAS BEEN ISSUED TO THE ASSESSEE WHICH HAS BEEN COMPLIED WITH BY THE ASSESSEE AND ADJOURNMENT HA S BEEN SOUGHT BY FILING COMMUNICATION IN THIS REGARD BEFORE THE TRIBUNAL, THEN THE DUTY IS CAST UPON THE PERSON SEEKING ADJOURNMENT TO NOTE THE NEXT DATE OF HEARING. IN SUCH CASES, THE ONUS IS NOT UPON THE TRIBUNAL TO SEND ANOTHER NOTICE OF HEARING TO THE ASSESSEE, WHERE THE DATE OF HEARING IS ANNOUNCED IN OPEN COURT ON AN APPLICATION MOVED BY THE RESPONDENT. THE PLEA OF ASSESSEE THAT IT WAS NOT AWARE OF THE NEXT DATE OF HEARING SINCE NO NOTICE OF HEARING WAS ISSUED TO HIM , IN SUC H CIRCUMSTANCES, IS NOT J UST IFIED, WHERE INITIAL NOTICE OF HEARING HAS BEEN SERVED UPON THE ASSESSEE AND HAS BEEN COMPLIED WITH BY THE ASSESSEE BY FILING THE APPLICATION FOR ADJOURNMENT. WHEN SUCH AN APPLICATION IS TAKEN UP AND THE CASE IS ADJOURNED AT THE WRITTEN REQUEST OF THE RESPONDENT, THEN IT IS THE ENDEAVOUR OF RESPONDENT TO FIND OUT THE NEXT DATE OF HEARING AND COMPLY WITH THE SAME. THE CASE OF APPLICANT BEFORE US IS THUS, IS 4 M A NO. 23 /PN/20 1 6 ARISING O UT OF ITA NO. 48 /PN/ 20 1 2 NOT GOVERNED BY THE RULE 25 OF ITAT RULES AND THE PLEA OF APPLICANT IN THIS REGARD IS THUS, DISMI SSED. 6 . ANOTHER ASPECT TO BE KEPT IN MIND IS THAT THE ISSUE HAS BEEN DECIDED ON MERITS ALSO AND THE APPLICANT HAS NOT POINTED OUT ANY DEFECT IN THE SAID ISSUE BEING DECIDED ON THE BASIS OF RELEVANT PROVISIONS OF THE ACT AND HENCE, THE MISCELLANEOUS APPLI CATION MOVED BY THE APPLICANT IS DISMISSED. 7 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY APPLICANT IS DISMISSED. ORDER P RONOUNCED ON THIS 21 ST DAY OF DECEM BER , 201 6 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) ANIL CHATURVEDI SUSHMA CHOWLA / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 21 ST DECEM BER , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / T HE APP LICANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - II , NASHIK ; 4. / THE CIT - I, NASHIK ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER, // TRUE COPY // // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE